174 Mo. 709 | Mo. | 1903
This is a proceeding in equity by which the plaintiff seeks to have the defendant divested of the legal title acquired by her,' to the premises described in the petition, under a general warranty deed from Sarah B. Curran, to her, dated April 28, 1894, and
Upon hearing the evidence the trial court dismissed plaintiff’s bill, and he appeals.
The consideration recited in the deed is $1,390, and counsel for plaintiff, who says he was not of counsel in the circuit court, opens his brief with the statement that, “Judging from the record, the case was tried below in a very bungling manner, and the pleadings are bursting with verbiage; but there is sufficient therein to show that the contention of the 'plaintiff is that he furnished the $1,390 with which the real estate described in the petition was purchased, and that in equity he is the owner of the same. ’ ’ This seems to be the theory upon which the case was tried in the circuit court, and will be accepted here. The same or a like bungler also seems to have prepared the abstract of this appeal, for while it is therein recited that the defendant read in evidence the pleadings and judgment in a former case, upon which the plea of res adjudicaba is based, neither the pleadings, nor the judgment in that case, are set out in the bill of exceptions. This defect is in part remedied by a counter abstract filed by counsel for defendant, but the judgment does not even appear therein, and as the plea was traversed, we have in the record no evidence of a former judgment to support the plea. Such being the state of the record that defense is eliminated from the case, and the only question for determination is, whether or not the judgment of the circuit court is correct upon the facts disclosed by the evidence.
The following facts may be said to be disclosed by evidence in the case upon which reliance can be placed with a reasonable degree of confidence; Sometime prior to the year 1884, John Evers came with his family from Germany to this country, and located in the city
Sometime prior to the year 1889, the defendant commenced making deposits in the name of Metta Sunken, in the Mullanphy Bank. When she commenced making these deposits, the dates and amounts thereof, do not appear. It was agreed on the trial “that two certificates of deposit, giving the number, dates and amounts, appear on the books of the Mullanphy Bank under the name of Metta Sunken.” But no evidence from those books appears in the record. Certain it is, however, that prior to 1889, she had accumulated a fund that was on time-deposit in that bank, and that in that year and the next year she transferred her account to the Bremen Bank, in which thereafter she made deposits as in the former bank in the name of Metta Sunken, as follows: Nov. 24, 1889, $365; Nov. 28, 1890, $100; Nov. 29, 1890, $100; March 14, 1890, $134; Sept. 19, 1891, $201, making^ in all $900, which she had on special deposit, drawing interest, in that bank on the 19th of September, 1891. In the meantime, on the 24th of April, 1891, the plaintiff received a pension check from the Government for $637. 67, which he says he deposited in the Northwestern Savings Bank, in his own name, and afterwards drew out the same in small sums. After the date last aforesaid, the plaintiff every three months received a pension check from the Government for $24. In the latter part of the year 1891, the defendant transferred her account from the Bremen Bank to the Northwestern Savings Bank, in which thereafter she made deposits in the name of Metta Sunken, as in the former banks, as follows: Dec. 3, 1891,, $700; July 12, 1893, $155; Sept. 21, 1893, $350; Dec. 8, 1893, $160;. and April 2, 1894, $300, making an aggregate of $1,665, which she had on
Sometime in the year 1895, the friendly relations that theretofore had existed between the plaintiff and the defendant, ceased. They separated, and thereafter, probably to the October term, 1897, of the St. Louis Circuit Court, he instituted a suit against her, seeking to have the title conveyed by said deed vested in him and the defendant as joint tenants, failing in which, he began this suit on the 6th of July, 1899. Turning now to the conflicting evidence in the case, the plaintiff testified that while he and defendant were living together, they slept in the same bed, and cohabited as if they were man and wife, and regularly as he drew his wages he turned them over to her for the purpose of defraying the household expenses, except such sums as he retailed for his own personal expenses. That he told her “to put it in bank; what she didn’t use in the family she should put that in the bank in my name.” That as he drew his pension money out of the bank, he also with some like reservations gave that to her. That when he went to live with her, she had no means. That she told him that she had $300 when her first husband, Evers, disappeared, but that he had taken it, and left her with nothing. This is the substance of his evidence, upon which in connection with the facts established by the uncontradicted evidence heretofore stated, the chancellor was asked to find that the premises were purchased with his money, and thereupon to declare a resulting trust in his favor, for the title. On the other hand, the defendant (whose story evidently suffers in the telling
It is impossible to tell which of these stories is true, or how much truth there is in either of them. Nor is it necessary to determine which is most consistent with the established facts of the case. It is sufficient that whatever view may be taken of the evidence as a whole, it must be said that it fell far short of showing that the premises in question were paid for with the plaintiff’s money by evidence so clear, positive, unequivocal and convincing as to leave no reasonable doubt in the mind of the chancellor, which is the standard required in all such cases by long and unbroken line of decisions in this State. [Johnson v. Quarles, 46 Mo. 423; Adams v. Burns, 96 Mo. 361; Allen v. Logan, 96 Mo. 591; Burdette
The judgment of the circuit court is affirmed.